Backa Australia Pty Ltd v HNT Builders Pty Ltd
[2017] QDC 255
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- Unreported Judgment
- Backa Australia Pty Ltd v HNT Builders Pty Ltd[2017] QDC 255
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Backa Australia Pty Ltd v HNT Builders Pty Ltd[2017] QDC 255
Backa Australia Pty Ltd v HNT Builders Pty Ltd[2017] QDC 255
DISTRICT COURT OF QUEENSLAND
CITATION: | Backa Australia Pty Ltd & Anor v HNT Builders Pty Ltd [2017] QDC 255 |
PARTIES: | BACKA AUSTRALIA PTY LTD (first appellant) ANRIKA PTY LTD (second appellant) v HNT BUILDERS PTY LTD (respondent) |
FILE NO: | 135/2017 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Southport |
DELIVERED ON: | 20 October 2017 |
DELIVERED AT: | Southport |
HEARING DATE: | 28 September 2017 |
JUDGE: | Kent QC DCJ |
ORDER: | The appeal is dismissed. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where an appeal was brought against the order of an Acting Magistrate – where the order, inter alia, dismissed an application to strike out paragraphs of the statement of claim – where the appeal is by way of rehearing – where the questionable portions of the statement of claim could be ameliorated with further and better particulars – whether the Acting Magistrate erred in dismissing the application PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT – where an appeal was brought against the order of an Acting Magistrate – where the order, inter alia, dismissed an application for summary judgment – whether the conclusion of the Acting Magistrate, to dismiss the application, was incorrect Magistrates Courts Act 1921 (Qld), s 45 Queensland Civil and Administrative Tribunal Act (Qld) 2009 Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293, r 785, r 765(1) Scrivener v Director of Public Prosecutions (2001) 125 A Crim R 279; [2001] QCA 454, cited Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, considered Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, considered Swain v Hillman [2001] 1 All ER 91, considered Chen v ANZ Banking Group Ltd [2001] QSC 304, cited Royalene Pty Ltd v Registrar of Titles [2007] QSC 059, cited |
COUNSEL: | M Pope for the appellants M Ramirez (sol) for the respondent |
SOLICITORS: | Derek Legal for the appellants Essen Lawyers for the respondent |
Nature of appeal
- [1]The appellants appeal from a decision of an Acting Magistrate on 21 April 2017. The appellants are defendants in a civil claim in the Magistrates Court at Southport and had applied to the Magistrates Court for orders as part of that action. On behalf of the second appellant, there had been an application for summary judgment which was refused. On behalf of the first appellant, there had been an application to strike out certain parts of the statement of claim.
- [2]Section 45 of the Magistrates Courts Act 1921 (Qld) provides for the right of appeal for parties dissatisfied with the judgment or order of a Magistrates Court to appeal to the District Court. The right of appeal is not limited where the amount involved in the action is more than the civil dispute limit, i.e. the amount exceeds $25,000, which it does in this case. Thus, in respect of the second defendant, the refusal of the summary judgment application is, in effect, a refusal of final relief. The other orders challenged, in relation to the refusal to strike out parts of a pleading, are in the nature of interlocutory orders. However, s 45 is framed in broad terms that it applies to a judgment or order of a Magistrates Court in an action. The only restriction is the jurisdictional one described as the ‘minor civil dispute limit’ outlined above. Pursuant to the Queensland Civil and Administrative Tribunal Act 2009, this limit is presently $25,000, which the claim in this case exceeds.
- [3]The result is that the appeal to this court seems to be one for which leave is not necessary. No contrary submission is made by the respondent.
- [4]
Grounds of appeal
- [5]The grounds relied on are:
- The decision of the learned Acting Magistrate was wrong.
- That the learned Acting Magistrate took into consideration matters that he was not permitted to do.
The appellants’ submissions
- [6]The second appellant contends that the Acting Magistrate should have granted summary judgment in its favour. The broad nature of the dispute between the parties is that there was an agreement between the respondent and the first appellant for the respondent to do building works for the first appellant, the quotation having been accepted on or about 16 April 2015. Thereafter, pursuant to paragraph 7 of the statement of claim, the first defendant (first appellant) met with the plaintiff (respondent) and requested changes to the plans.
- [7]Pursuant to paragraph 9 of the statement of claim, the first defendant (first appellant), by its sole director, a Mr Krstin, agreed with the plaintiff (respondent) to pay the required additional costs. It is then said that the works were completed, and the respondent claims for work done but not paid for. It is pleaded in paragraph 15 of the statement of claim that in January 2016 the respondent’s representative met with the representative of the second defendant (second appellant), who had authority to act on behalf of the first defendant (first appellant), in relation to the outstanding payments.
- [8]Thus, the appellants submit that paragraph 7 of the statement of claim clearly pleads an agreement between the first appellant and the respondent, to the apparent exclusion of the second appellant. There is, in the submission of the second appellant, simply no cause of action pleaded against it and there should have thus been judgment for the second appellant against the respondent.
- [9]The complaint of the first appellant is that the Acting Magistrate failed to strike out paragraphs 7 and 13 of the statement of claim, and possibly paragraph 9 as well. In essence, the submission is that although those paragraphs purport to set out the dealings between the first appellant and the respondent, no meaningful agreement is in fact set out such that, although particulars of additional costs are given, no cause of action is identified and it is therefore not possible to plead to those paragraphs. Thus, the paragraphs should be struck out and the plaintiff required to re-plead. I note that this is in contrast with the stance taken on behalf of the second appellant, which is apparently that there should not be an opportunity for the respondent to further or properly plead its case against that party.
The decision
- [10]The Acting Magistrate correctly identified that summary judgment should only be granted in clear cut cases. His Honour said that it was the respondent company’s view, ‘that both the first and second defendants were involved in the work’. His Honour said there was a triable issue as to whether the second defendant was involved in the matter in a contractual sense.
- [11]In relation to the striking out of paragraphs 7 and 13, his Honour was of the view that further and better particulars could be given upon request, which would address any anomalies in the pleadings.
- [12]The second appellant relies on the application that sought summary judgment in favour of the second appellant. In support of that application, submissions were made including a contention that affidavit material showed the ‘original work had been accepted by the first appellant only’. The respondent joins issue in relation to this. The exact nature and meaning of the signatures on the quote are in issue between the parties and I am not able to determine that issue on the present application. Indeed, the relevant affidavit material was not read by the appellants on the hearing of the appeal. In any case, the appellants’ point is one that is confined to the pleadings. It is said that, whether the second appellant had been party to the original contractual arrangements for the building work or not, it was not a party to the modifications and there is no way of reading the relevant paragraphs of the statement of claim, particularly 7, 9 and 13, so as to identify a cause of action pleaded against the second appellant.
Consideration – summary judgement
- [13]Paragraph 6 of the statement of claim pleads that the respondent’s original quotation was accepted by the defendants (i.e. plural, referring to both) on or about 16 April 2016. The date is an error – in fact it was 16 April 2015. However, nothing turns on the correctness of the date.
- [14]Thus, there is a pleading involving the second appellant in the original contractual arrangements. However, the pleaded cause of action does not involve those arrangements, rather, the later modifications identified in paragraphs 7, 9 and 13.
- [15]As to that aspect, then, in paragraph 7, there is a pleading of the first appellant meeting with the respondent and requesting changes to the plans and other changes to the proposed modifications. Paragraph 9 clearly pleads that it was the first appellant, by its sole director, which entered into an agreement with the respondent to pay the additional costs as they arose. Paragraph 13 sets out the additional costs, which are said to total $180,295.97.
- [16]Then in paragraph 15 it is pleaded that in January 2016 the plaintiff’s representative met with the second defendant’s representative, Ms Mijok, who had authority to act on behalf of, and bind, the first defendant, regarding the outstanding payments owed for the additional works. This is, of course, some seven months after the agreement for the additional works had been concluded between the first appellant and the respondent, pursuant to the pleading in paragraph 7 of the statement of claim.
- [17]Thus, the argument of the second appellant is that:
-There is only, in respect of the additional works, a pleading of a contractual relationship between the first appellant and the respondent;
-If Ms Mijok, a director of the second appellant, met with the plaintiff’s representative seven months later in relation to outstanding payments, this in no way creates a contractual relationship between the plaintiff (respondent) and the second defendant (second appellant) in respect of that work;
-The pleading in paragraph 15 is that Ms Mijok, not the second defendant, had authority to act on behalf of, and bind, the first defendant. This is not a pleading of any contractual relationship between the second appellant and the respondent in respect of those additional works;
-Thus, there is no case pleaded against the second appellant; summary judgement should have been granted, and should now be granted on appeal;
-In response, the respondent (plaintiff) refers to the reply and answer, which pleads in paragraph 4 that both appellants signed and were bound by the original quotation, ‘and the work was done under the authority and approval of the second defendant’ – thus, both parties are bound; and in paragraph 18, it is also pleaded that both defendants were party to the agreement alleged. In effect, it is said there was a real dispute and the summary judgement application was rightly dismissed.
Principles
- [18]The jurisdiction to grant summary judgment for a defendant is set out in r 293 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). On such an application, the court may give judgment for a defendant against the plaintiff if satisfied that the plaintiff has no real prospect of succeeding and there is no need for a trial on the claim.
- [19]The phrase ‘no real prospect’ has been the subject of judicial analysis. In Deputy Commissioner of Taxation v Salcedo,[3] at [3], McMurdo P said that:
‘Nothing in the UCPR, however, detracts from the well-established general principle that issues raised in proceedings will be determined summarily only in the clearest of cases…’
- [20]
‘… Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.’[5]
- [21]Further, Williams JA in Salcedo, at [11] referred with approval to a passage from Swain v Hillman[6] at p 92:
‘The words 'no real prospect of succeeding' do not need any amplification, they speak for themselves. The word 'real' distinguishes fanciful prospects of success or… they direct the court to the need to see whether there is a 'realistic' as opposed to a 'fanciful' prospect of success.’
- [22]Thus, the jurisdiction should only be exercised in a clear case. Further, it should not be exercised in circumstances where a plaintiff may be able to improve its position by proper amendments to the pleading.[7]
- [23]In my view, the conclusion of the Acting Magistrate that the application for summary judgment should be dismissed, is not shown to be incorrect. As outlined above, his Honour said that it was the respondent company’s view ‘that both the first and second defendants were involved in the work’. What his Honour was intending to convey, no doubt, was that it was not only the view of the respondent company but it was a view that was expressed in the pleadings, and in my view that conclusion is not shown to be incorrect. Apart from the features of the pleadings already referred to, it should be noted that paragraph 11 of the statement of claim pleads that the original works agreed were carried out by the plaintiff and the defendants (i.e. the defendants plural – both defendants) and that the defendants owed the original contract price to the plaintiff. This is, on its face, a pleading that both defendants were involved.
- [24]Further, the final words of paragraph 15 of the statement of claim set out that the additional works were carried out by the plaintiff ‘for and at the request of the defendants’. This is, again, a pleading of involvement by both defendants. Paragraph 16 pleads that the plaintiff granted a credit to the defendants (on its face a reference to both defendants); and paragraph 18 pleads a further agreement between ‘the parties’; again, an apparent reference to an agreement by all of the parties.
- [25]Whether the evidence to be produced actually supports the pleadings of involvement by the second defendant will be a matter to be fleshed out at trial and is a dispute that is not engaged upon for the purposes of the present appeal. The application, and this consequent appeal, have been conducted on the basis of a gap in the pleadings rather than a fatal flaw in the evidence available to the respondent (plaintiff) at the trial. That said, it is certainly true that there is some confusion and indeed, arguably, inconsistency in some of the paragraphs of the statement of claim. Paragraphs 7 and 9, in particular, should receive some attention before the matter goes to trial. However I do not, for the reasons outlined, conclude that the Acing Magistrate was wrong in his application of the relevant test. It was not a case, in my view, given that the argument was confined to the pleadings, where the respondent plaintiff had no real prospect of success as against the second appellant (second defendant).
Strike out
- [26]The first appellant contests the decision of the Acting Magistrate not to strike out paragraphs 7 and 13 of the statement of claim. The argument in relation to paragraph 7 is that it is not possible to plead to the allegation because the changes to the approved plans are not set out so as to relate to the additional costs later set out in paragraph 13.
- [27]The jurisdiction to strike out pleadings is set out in r 171. The fault complained of in the present case, although it is not made completely clear in the application or the appeal as to exactly which basis is relied upon, the rule applies if a pleading or part of a pleading:
- (a)discloses no reasonable cause of action or defence; or
- (b)has a tendency to prejudice or delay the fair trial of the proceeding; or
- (c)is unnecessary or scandalous;
- (d)is frivolous or vexatious; or
- (e)is otherwise an abuse of the process of the court.
- [28]Again, the court’s discretion to strike out pleadings should only be exercised in clear cases.[8] The complaint here is that although there are many particulars of additional costs incurred as set out in paragraph 13 of the statement of claim, they are not related to the further agreement, including changes and modifications, which is pleaded at paragraph 7. However, the introductory words of paragraph 13 of the statement of claim are:
‘The particulars of the additional costs incurred in conjunction with the agreement of 15 June 2015, and for which the plaintiff’s claim is made, are as follows…’
Thus, although the changes and their consequences are not set out in paragraph 7, they are related to paragraph 7 by the particulars in paragraph 13. However, it is correct, in my view, for the first appellant to argue that, although the additional expenses and their breakdown is identified, the exact additional works are not identified.
- [29]The Acting Magistrate responded to this issue by indicating that the problem could be addressed through further and better particulars. The first appellant argues that this is not correct, because its point is that no relatable cause of action is pleaded in paragraph 7, which is more basic than a lack of particulars. However, it is also true, in my view, that provided the evidence supports such a contention, the gap in paragraph 7 could be addressed by a pleading identifying the modifications required as a result of the changes pleaded therein, and relating them to the particulars given in paragraph 13. In other words, the situation calls for an amendment (or at least the opportunity to make one) together with further and better particulars of paragraph 7, rather than the more extreme solution of striking out the paragraphs.
- [30]Therefore, although I would characterise the solution somewhat differently, as amendment together with further and better particulars, the Acting Magistrate has not been shown to be incorrect on this point and thus the appeal on this issue is also dismissed.
- [31]I will hear the parties as to costs.
Footnotes
[1]Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) rr 785 and 765(1).
[2] See, for example, Scrivener v Director of Public Prosecutions (2001) 125 A Crim R 279 at [10].
[3] [2005] 2 Qd R 232.
[4] (2000) 201 CLR 552.
[5] At [57].
[6] [2001] 1 All ER 91.
[7]Chen v ANZ Banking Group Ltd [2001] QSC 304 at [1].
[8] See, for example, Royalene Pty Ltd v Registrar of Titles [2007] QSC 059 at [6] per Mackenzie J.